October 1, 2019

Podcast - Rule 2: Remember, You Are On The Record

Powerful Witness Prep Podcast Series

In the latest episode of his "Powerful Witness Preparation" podcast series, "Remember, You Are On The Record," litigation attorney Dan Small continues his in-depth discussion of the rules for witness preparation. This episode covers an aspect of witness testimony that makes it an especially strange experience: Everything is on the record. Once words leave a witness' mouth, they can't be taken back. With that in mind, Mr. Small shares two key ideas for witnesses to keep in mind: timing and language. If witnesses slow down, talk in complete sentences and think carefully about the words they're using, they will leave behind a better record.

Listen to more Powerful Witness Preparation Podcasts here.


Dan Small: One of the many unnatural things about being a witness is that often, the most important person in the room is the only one who doesn't say anything: the person taking the notes. If it's formal testimony, that may be a court reporter and a tape recorder. If it's less formal, an interview, there will still be someone taking notes, and everyone should treat this as if that person is a court reporter. Assume that everything — questions, answers, comments — is being taken down word for word. What this means is that a witness cannot "unring the bell." Once words come out of your mouth, they're committed to the cold written page under oath. Even humor and sarcastic remarks read like factual statements in a transcript. Every word is there for all to see for all time. There are several things you can do to leave behind a better record.

Timing: Talk in Complete Sentences

First, timing. Slow down. Answer each question as if you were dictating the first and only draft of an important document. That's exactly what you're doing. Consider each word carefully. This is extremely difficult to do. I've used a dictating machine for many years for all kinds of documents, and I've become pretty good at it. Yet even with all that experience, I'm still constantly rewinding, rethinking, rewording and retaping. Then even after that process, nothing that I dictate actually goes out unless I've also reviewed, and usually edited, the printed copy. A witness has none of those advantages, yet your dictated document, unlike most of mine, is under oath. We'll discuss some of the basic rules for being careful and precise in later episodes, but it may be helpful here to think about some common issues that can create problems on the record.

First, talk in complete sentences. Unless it's a very clear and very simple question, the question should not be answered just "yes" or "no." Beware of compound questions or questions with double negatives in them. In discussing conversations, make it clear whether you're paraphrasing or quoting directly. Don't put words in someone else's mouth unless you're 100 percent sure, and don't adopt a questioner's summary of your prior statements. The questioner may give a summary that's close to the truth but incomplete or distorted. If so, just answer "no." And if you're asked why you answered "no," you can explain or elaborate. You cannot dictate a document this important quickly, casually or off the cuff. You need to be fully prepared and then approach it with the right sense of pace, care and precision.

Five Basic Language Issues

Next, be aware of the power of language. In a casual conversation we're very relaxed, even sloppy, about language and choice of words. But when every word is transcribed and under oath, language takes on extraordinary importance far beyond normal conversation. Then, when two or more sides are fighting over what those words mean, each trying to use them for their own purposes, the problems multiply. We must be aware of, and carefully consider, each word in the question. There are five basic language issues that witnesses must confront and be prepared for: confusing, jargon, legalese, relative and loaded. Some of these obviously overlap, but it's worth considering each one separately.

Confusing Language

Let's start with confusing language. Open any dictionary at random to any page, and you'll see a basic truth: There are very few simple words. Most have more than one meaning. In the heat of litigation those differences can be blown up in degree and significance. If the witness is not 100 percent clear about how the questioner is using a word, they cannot answer the question. If they answer, the questioner will assume their definition is the one in play. Just say, "please rephrase the question." I talked about this issue of different meanings at a CLE program I gave years ago, and someone came up to me at the break and said, "You should talk about contranyms." A contranym, I discovered, is a word that can mean the opposite of itself. Just a few examples. "Buckle," buckle can mean hold together or fall apart. "Clip," clip can mean attach or cut off. "Oversight," oversight can mean watch carefully or miss completely. Certainly these specific words may never come up, but it is a helpful reminder that words can have very different meanings. One common tactic is for a questioner to try to bully their way through language problems. Consider this exchange:

Question: "Who did you report to?"

Answer: "Please rephrase the question."

Question: "What don't you understand about my question?"

Answer: "I'm not comfortable with 'report.' I had consultants and investors, but 'report' sounds like I'm in the army."

Question: "Well, you know what the word 'report' means, don't you?"

Answer: "Well, well, yeah, I guess so."

The witness gave into a question with the unspoken, "you idiot," at the end of it. "You know what the word 'report' means, don't you, you idiot?" But when I spoke to her later I said, "The issue is not whether you're too stupid to know what report means," which is how she felt it was. "The issue is whether the questioner is too stupid to know that the dictionary has 25 different definitions of the word and you didn't know which one she meant. Be sure you know before you answer."

Take another example, a simple word like "fall." Webster's Dictionary defines "fall" as "to descend freely by the force of gravity." When they were younger, my twin girls had bunk beds. To them, rolling out of the bottom bunk was not a fall, it was just rolling out of bed. But even to them, rolling out of the top bunk was to descend freely by the force of gravity. So there was a small railing on the top bunk to prevent a fall. I've been called in by several healthcare companies that are involved with nursing homes to help their trial counsel prepare executives and others for deposition and trial testimony. In the nursing home world, there's a great deal of discussion of falls: fall reporting, fall statistics, fall prevention, etc. Imagine the impact of all this on juror number six. At least part of him hears the word "fall," and he's thinking top bunk. What's wrong with these people? Why is grandma descending freely by the force of gravity? How can the nursing home let this happen? Opposing counsel can take advantage of this, using that simple word as a weapon. But words have different meanings in different contexts, and in the nursing home world, that's not what "fall" means. The law defines "fall" as "found on the floor." Thus, if a resident is found on the floor and no one saw how she got there, even if she's perfectly happy and unhurt and may have just sat down, that's a federally reportable fall, and the nursing home is required to report it and respond. The witness knows this, juror number six does not. It's up to the witness and counsel to make sure that the correct meaning is made clear.


Next is jargon language. Every profession, industry, region, whatever, has its own language, we call it jargon. In Webster's Dictionary, "jargon" is "the technical terminology or characteristic idiom of a special activity or group." But like so many other words, jargon has multiple meanings. When juror number six hears "jargon," it comes across less as impressive technical know-how and more like Webster's next definition of the word, "obscure and often pretentious language marked by circumlocutions and long words." Witnesses need to work hard to stay away from jargon and to recognize when they fall back into it and stop to explain. Jargon interferes with communication in so many ways. Jurors don't understand it, they don't like it, and they often feel it's condescending. It can make the witness seem cold and distant, talking about human issues in dehumanizing terms. In fact, if anything, we badly understate the problem if we just say that jargon interferes with communication. If you look at it from the perspective of juror number six, it's much worse. Jargon forces juror number six into three bad choices. If a witness uses jargon, juror number six can only 1) ignore it, in which case, why did the lawyer have the witness say it, 2) spend the next several minutes trying to figure it out, in which case the testimony that follows is lost, or 3) decide that the witness is a jerk and ignore everything the witness says. Any of these choices can be damaging to the witness and the case. Help your witness to understand what kind of jargon he or she speaks and how to avoid it. And if you must use jargon, stop immediately to explain it. Remember, the point is to communicate, not to impress. Keep it simple.


Next is legalese. In every case, there are legal standards and concepts that have to be broken down from their confusing language and explained in clear and simple terms. Counsel must help the witness understand what they are so they don't stumble upon them blindly or get lured into them unsuspectingly. Then witness and counsel must be ready to deal with them during testimony. The greatest language challenges come when a word exists at the intersection of two or three language worlds. When a word has different meanings in English, jargon and legalese, then it's particularly important for the witness to be 100 percent sure which meaning the questioner intended, or he or she cannot answer the question.

Two quick examples. First, the seemingly simple word "manage" or "manager." In English it can mean a range of things, from managing a sports team, where manager and coach can either be synonymous or very different, to managing a checkbook, to managing to escape a dull party. In the jargon of some businesses and industries, "manager" has a particular meaning, which may or may not mean the real boss. In legalese, many state legislatures in their infinite wisdom gave the corporate secretary of an LLC the name "manager," even though such a statutory manager may only be there to sign documents and have little or nothing to do with running the business. Which meaning does the questioner mean? Another example: "Standard of care" seems like a simple phrase, and many unprepared witnesses assume it means whatever is logically the right way to do something. It could be the way they were trained, or something in a book, or just something that makes sense. But "standard of care" in a legal proceeding has a very different and far more limited legal definition. Different jurisdictions phrase it differently, but the best and simplest definition is just five words: reasonable care under the circumstances. It's a phrase bookended by two words that clearly remove it from the realm of books or fixed standards. What were the circumstances at the time? And given all that, what was reasonable for that person or entity to do? Common usage or legalese, which meaning does the questioner mean?

Relative Language

Relative language. Listen to this question: "Did you have those important meetings frequently?" The words seem simple and common enough, but something is wrong. "Simple" does not mean clear, and "common" does not mean precise. A witness needs both clarity and precision. Relative terms are words that ask the witness to place something on a continuum with no reference points. They almost guarantee that the questioner and the witness will view the word and thus the testimony differently. Examples of relative language include "frequently," "substantial," "common," "general," "important," "regular." These are words where, to get clarity and precision, the response would have to be compared to what. Were these meetings important? Compared to what, other meetings? Which ones? Were these meetings frequent? Compared to what, hourly events, daily, monthly, quarterly? The problem is that the questioner may mean one thing, but the witness means something very different. The questioner now or later will try to use that gap to her advantage. Don't let them Just say, "Please rephrase the question."

Loaded Language

Lastly, loaded language. The old saying is true. "It's not just what you say, it's how you say it." Loaded words are words that seek to have an emotional impact, positive or negative. In every case, there are at least two kinds of loaded words: those that counsel putting on a witness want that witness to use, and those that they don't want the witness to use. Part of preparation is helping the witness to sort out which is which, and to be ready for both. Think about the different ways a witness could describe the same thing. For example, "the car flew through the stop sign," and "the car went past the sign." "The car smashed into the bus," and "the car brushed the side of the bus." "The children were screaming in panic," and "the children were upset." If the question contains loaded language the witness doesn't agree with, don't answer it. But that process must start in preparation. If you're not 110 percent sure what the questioner meant by a word or a phrase, do not answer the question. Remember the most important person, the court reporter, he or she doesn't know what the word means or which meaning is intended unless either the questioner or the witness makes it clear. It's up to the witness to insist on the discipline of clarity. After all, you are on the record.

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